Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Partial win for Little Sisters

Posted Fri, January 24th, 2014 4:09 pm by Lyle Denniston

The Supreme Court on Friday afternoon gave an order of Roman Catholic nuns some added protection against the enforcement of a part of the Affordable Care Act, and spared them — for now — from having to file a government form in order to be exempt. The order, released after weeks of uncertainty, came without noted dissent in the case of Little Sisters of the Poor v. Sebelius (application 13A691).

The bar to enforcement of the so-called “contraceptive mandate” against two groups of the Little Sisters order will remain in effect while their challenge unfolds and reaches a final decision before the U.S. Court of Appeals for the Tenth Circuit, based in Denver. The Court’s order stressed that it was not ruling on the merits of that challenge.

Lawyers for the Little Sisters have been seeking protection for some 400 other Roman Catholic groups, and they asked the Court to assure that all would be shielded. Lower courts, however, have not approved the case as a class lawsuit, so it appeared that each group seeking similar protection would have to seek it individually; the government has said it would not object if others made such pleas. The Court did not mention that aspect of the controversy.

The federal health care law requires employers with health care plans for their workers to provide coverage for a variety of pregnancy-related services. If a religious group objects to those services, as the Little Sisters order does, it is required to file a form — EBSA Form 700 — claiming an exemption. The Little Sisters told the Supreme Court that even filing that form would make them a part of the scheme, and thus draw them into support for abortions or abortion-related services.

The Justices’ order does require the Little Sisters to tell the government, in writing, that they are non-profit groups “that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.” That was a procedural wrinkle that the Court itself invented, outside the rules laid down by the government.

If the Little Sisters do make that substitute kind of notification, then the government, under the order, is barred from enforcing the mandate against them. At no point in the case as it moves forward, the order stressed, are the Little Sisters required to file Form 700 with the government, or to send copies of it to the separate entity that operates their employee health benefit plan.

The final sentence of the Justices order reads: “The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s view on the merits.”

The Little Sisters’ plea had been before the Court continuously since all of the legal papers were completed, on January 3. The final order that emerged gave no indication of why the Court had not acted on it sooner — a weeks-long span that is very unusual for such an application for temporary legal relief.

The “contraceptive mandate” has been challenged in dozens of lawsuits across the country, by both religious entities like the Little Sisters, and profit-making business firms whose owners object, for religious reasons, to providing some of the ACA-mandated services for their workers. The Court is reviewing the mandate this Term, as it applies to business firms. It has not yet taken on for full review a case involving a religious entity. Its order Friday marked the first time it had faced that part of the widespread controversy.

The two groups of the Little Sisters order, in Denver and Baltimore, have an employee benefit plan that would be covered by the “contraceptive mandate” if they did not qualify for an exemption. The government says that they do qualify, but only if they file a
Form 700 and pass on copies to the health plan administrator, Christian Brothers Employee Benefit Trust.

The Christian Brothers entity itself has made clear that it, too, objects to the “contraceptive mandate” and would not incorporate it in the Little Sisters plan. And, the government told the Court, the Christian Brothers would not have to do that, because another federal law exempts “church plans” from the ACA mandate.

Even so, the Little Sisters, in urging the Court to give them formal legal shelter from the mandate, had argued that they did not want any part in the scheme — not filing Form 700 and not passing it on to Christian Brothers. That is exactly what they won — temporarily — in Friday’s order from the Supreme Court.

Of course, they still have to persuade the Tenth Circuit, in their appeal there, that the mandate’s obligations are an unconstitutional intrusion on their religious beliefs.

Although the Friday order relieved the Little Sisters, for the time being, of a duty to file Form 700 and pass that on to their plan’s operator, the Justices did give the federal government something, too. The government, in resisting the Little Sisters’ challenge, had said that the government has to have some workable mechanism that religious groups can file in order to be let out of the mandate’s obligation.

The Justices supplied that with the requirement that the Little Sisters make a written declaration (the Court did not say what exact format it must have) that they are seeking an exemption. Presumably, that will be a better option for them, because under the ACA only a properly filled-out Form 700 could lead to actual coverage of the contraceptive services included in the mandate. The legal force of that particular document was at the core of the Little Sisters’ religious objection. Once they filled it out, they contended, it just might lead, in practical terms, to the beginning of such coverage.

The government had disputed that interpretation, at least as to religious organizations like the Little Sisters, because of the official view that, as a “church plan,” the Little Sisters’ benefits program did not have to comply with the ACA anyway.

Those two interpretations of the meaning of the mandate, of course, will be at the center of the Little Sisters case as it moves ahead in the federal appeals court in Denver.

Only religious organizations have any legal right, under the ACA, to be exempt from the mandate. That is why profit-making business firms, with religiously devout owners, are making their own challenge to the mandate. Their challenge comes before the Court in an oral argument scheduled for March 25 in a pair of consolidated cases (13-354 and 13-356) — one petition by the government, and one by a profit-making company.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]